Morgan v. Simon - 00-1556 ( La. App. 3 Cir 02/28/01), 780 So. 2d 626

Rule:

The harsh remedy of dismissal should not be applied in a matter, when the appeal has clearly not been abandoned, without first giving the appellant a brief extension of time to pay.

Facts:

Appellant Bonnie Morgan was injured in a car accident. Her initial attorney, Glennon Everett, represented her in a workers' compensation proceeding. Appellant contacted appellee, J. Minos Simon, to discuss a malpractice action against Everett because the latter allowed a tort suit to prescribe. Appellee filed an unsuccessful suit against the alleged tortfeasor instead. A suit against Everett was then not available as the three-year prescriptive period had run. Appellant retained another attorney who sued appellee for malpractice for failure to sue Everett. The trial court granted appellee's summary judgment motion. When appellants did not pay the appeal costs after notice was sent, the trial court dismissed the appeal, even though appellants' counsel deposited the appeal costs before the hearing. Appellants challenged the decision. 

Issue:

1. Did the trial court err in dismissing the appeal filed by appellants? 
2. Was the grant of summary judgment in favor of appellee proper under the circumstances? 

Answer:

1) Yes. 2) No.

Conclusion:

The appellate court found the trial court erred in immediately dismissing the appeal, without giving appellants an extension of time to pay costs. Further, the grant of summary judgment was improper as genuine issues of material fact existed as to whether appellee agreed to pursue a malpractice claim and whether appellant had retained the initial attorney to pursue only a workers' compensation claim.